CHONG H. SU v. PATRICIA STEPHENS



NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE COMMITTEE ON OPINIONS

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. 1176-04T2A-1176-04T2

CHONG H. SU,

Plaintiff-Appellant,

v.

PATRICIA STEPHENS,

Defendant-Respondent.

________________________________________________________


Submitted October 18, 2005 - Decided April 20, 2006

Before Judges Hoens and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Hudson County, Docket No. SC-3124-03.

Chong H. Su, appellant pro se.

Respondent's brief was suppressed.

PER CURIAM

Plaintiff, Chong H. Su, appeals pro se from a landlord/tenant order awarding plaintiff rent in the amount of $1,000, but denying plaintiff any additional recovery based on damage to the property. Plaintiff contends that the tenant, defendant Patricia Stephens, owes him $9,450 due to damage she caused to the apartment. Plaintiff's appellate brief is virtually incomprehensible and respondent's brief in the appeal was suppressed. Because the record relating to the matter is so woefully inadequate, we cannot rationally evaluate the issues raised. We are constrained to dismiss plaintiff's appeal.

We glean, with only slight confidence in the accuracy of our assumptions, the following information from plaintiff's brief and appendix. Plaintiff is the landlord of an apartment leased to defendant. Defendant may also have been the superintendent of the apartment building. At the same time, defendant apparently worked as a cleaning lady at the Hudson County Courthouse. In October 2003, plaintiff attempted to evict defendant for her failure to pay $3,095, alleged to represent three months of unpaid rent. On or about November 3, 2003, plaintiff obtained a judgment for possession, and he also may have caused a warrant of removal to be issued. He then agreed to allow defendant to remain in the apartment until November 26, 2003. At about that time, based on an order to show cause, with a return date of December 2, 2003, defendant was granted a hardship stay or order for an orderly removal. Although we are unable to determine when it occurred, defendant eventually was removed from the apartment or moved out of her own volition.

Though plaintiff contends the trial court should have found that defendant damaged the apartment, we are presented with no record, testimonial or documentary, to support his contention. According to plaintiff's brief, on the day prior to the return date for the order to show cause in the hardship or orderly removal application, defendant told plaintiff to come to the apartment to collect the outstanding rent. When plaintiff arrived at the apartment, plaintiff alleges that a man with defendant hit him, causing an injury, and he never received the unpaid rent. We are not presented with any support for these allegations.

On the return date for the order to show cause, the court apparently extended the stay, presumably a hardship stay, until February 28, 2003. The stay apparently was without the posting of rent. Then, plaintiff started sending a variety of notes and demands to defendant, but, whether due to the stay or for other reasons, plaintiff did not regain immediate possession of his premises. Documents in plaintiff's appendix disclose that a lockout was attempted on January 9, 2004, but the tenant would not leave. Yet, a letter from plaintiff received by the Special Civil Part, Hudson County, on January 29, 2004, indicates that the apartment was padlocked on January 9, 2004, and that prior to the date of that letter, defendant had moved out. Eventually, on September 17, 2004, the court awarded plaintiff $1,000 for unpaid rent and denied plaintiff's request for compensation for damage to the apartment.

Plaintiff filed his Notice of Appeal on November 1, 2004. In his Notice of Appeal, plaintiff acknowledges that "[t]he judgement [sic] for rent is right." Plaintiff asserts, however, in his Notice that there is evidence defendant damaged the apartment. Thus, we assume that plaintiff is only appealing the denial of compensatory relief for damages to his apartment that he alleges defendant caused during her occupancy.

The guidelines for our review were articulated in Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974), where our Supreme Court stated that "[f]indings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence." See New Jersey Turnpike Authority v. Sisselman, 106 N.J. Super. 358, 370 (App. Div. 1969), certif. den. 54 N.J. 565 (1969). Our function is limited: we will not "disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc., supra, 65 N.J. at 484; Fagliarone v. Twp. of No. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963).

In this case, we are moved to repeat the obvious: "In order for us to review the matter in an informed way, an adequate record is necessary." Magill v. Casel, 238 N.J. Super. 57, 64 (App. Div. 1990). We have not been presented with a record that would allow us to understand what took place in the trial court. Plaintiff has not furnished a court order; nor do we have a transcript of any proceedings. Plaintiff, of course, has the burden of producing relevant transcripts which are sufficiently complete for accurate evaluations. Ibid. We have been severely hampered and, indeed, we are unable to determine whether, as is alleged by plaintiff, the court's decision should be disturbed.

The Rules Governing the Courts of New Jersey mandate that "if a verbatim record was made of the proceedings before the court . . . from which the appeal is taken, the appellant shall, no later than the time of the filing and service of the notice of appeal, serve a request for the preparation of an original and copy of the transcript . . . ." R. 2:5-3(a). A copy for a request for a transcript "shall be mailed . . . to the clerk of the appellate court." Ibid.

Where, however, there is not a verbatim record of the proceedings, R. 2:5-3(f) instructs that:

the appellant shall, within 14 days of the filing of the notice of appeal, serve on the respondent a statement of the evidence and proceedings prepared from the best available sources, including the appellant's recollection. The respondent may, within 14 days after such service, serve upon the appellant any objections or proposed amendments thereto. The appellant shall thereupon forthwith file the statement and any objections or proposed amendments with the court or agency from which the appeal is taken for settlement and within 14 days after the filing of the same the court or agency shall settle the statement of the proceedings and file it with the clerk thereof, who shall promptly provide the parties with a copy. If a verbatim record made of the proceedings has been lost, destroyed or is otherwise unavailable, the court or agency from which the appeal was taken shall supervise the reconstruction of the record. The reconstruction may be in the form of a statement of proceedings in lieu of a transcript.

Additionally, an appellant bears the burden, pursuant to R. 2:6-1(a), to include in his appendix the pleadings as well as "such other parts of the record . . . as are essential to the proper consideration of the issues," R. 2:6-1(a)(8). This has not been done in this case.

Regarding his claim to recover damages, the evidence provided by plaintiff consists of sworn statements from three people who assert that they repaired plaintiff's apartment. The combined total charged, according to those statements, is $4,000. Without a proper record, we do not even know whether this evidence is properly before us pursuant to R. 2:5-4(a). See Pressler, Current N.J. Court Rules, comment 1 on R. 2:5-4(a) (2006) ("It is of course, clear that in their review the appellate courts will not ordinarily consider evidentiary material which is not in the record below by way of adduced proof, judicially noticeable facts, stipulation, [or] admission . . . .").

Since we have not been provided with a record of what evidence plaintiff actually presented as to the alleged damage to the apartment and no record of what was the basis for the court's judgment, we are in no position to decide the issues that plaintiff seeks to raise by this appeal. While we recognize that plaintiff is proceeding pro se and that English is not his primary language, the blatant inadequacy of the record and his brief renders impossible any attempt to comprehend, much less to evaluate the basis for plaintiff's appeal.

Appeal dismissed.


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A-1176-04T2

April 20, 2006